Southwell v. University of Incarnate Word

• Decision Date: 29 May 1998
• Docket Number: No. 04-97-00817-CV,04-97-00817-CV
• Citation: 974 S.W.2d 351
• Parties: 128 Ed. Law Rep. 1294 Deborah Nancy SOUTHWELL, Appellant, v. UNIVERSITY OF THE INCARNATE WORD f/k/a Incarnate Word College, Appellee.
• Court: Texas Court of Appeals

Page 351

974 S.W.2d 351

128 Ed. Law Rep. 1294

Deborah Nancy SOUTHWELL, Appellant, v. UNIVERSITY OF THE INCARNATE WORD f/k/a Incarnate Word College, Appellee.

No. 04-97-00817-CV.

Court of Appeals of Texas San Antonio.

May 29, 1998.

Rehearing Overruled July 15, 1998.

Judith Ramsey Saldana, San Antonio, for Appellant.

William H. Quirk, III, Beckmann & Quirk, P.C., San Antonio, for Appellee.

Before HARDBERGER, C.J., and RICKHOFF and ANGELINI, JJ.

OPINION

ANGELINI, Justice.

Deborah Nancy Southwell appeals a summary judgment granted in favor of the University of the Incarnate Word. Southwell raises seven issues on appeal, contending that the trial court erred in granting Incarnate Word's motion for summary judgment because (1) fact issues exist regarding the existence of a contract between the parties, whether the contract was breached, and whether Incarnate Word violated the Deceptive Trade Practices Act; (2) neither Incarnate Word's motion nor the trial court's order addressed Southwell's breach of contract claim; (3) Incarnate Word failed to properly object to Southwell's summary judgment proof; and (4) the trial court erred in overruling Southwell's objections to Incarnate Word's summary judgment proof. We affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

Southwell was a student in the nursing program at Incarnate Word from 1993 to 1995. She enrolled under the 1993-1995 Undergraduate Bulletin of Incarnate Word College and the BSN Handbook. The program in which Southwell was enrolled required her to successfully complete both academic and clinical course work and to be recommended for graduation by the nursing faculty in order to receive her Bachelor of Science degree in nursing.

The semester before Southwell anticipated receiving her degree, she was enrolled in a required Nursing Leadership/Management course. The course consisted of both academic and practical components. Southwell successfully completed the academic component of the course. However, during the practical component, Maureen Reilly, the clinical instructor, ordered Southwell off of the hospital floor after Southwell compromised the safety of a patient.

Southwell hired an attorney, and, after negotiations, Incarnate Word offered Southwell the opportunity to complete the Nursing Leadership/Management clinical requirement through an independent assessment. Southwell chose to participate in the independent assessment. She was evaluated by Catherine Murk during a week-long practicum. Unfortunately, Southwell received a failing grade in the practicum, resulting in her failure of the Nursing Leadership/Management course. Accordingly, Southwell was unable to obtain her degree as scheduled. Southwell did not, however, apply for retention in the program as specified in the BSN Handbook. Instead, she filed this lawsuit.

Southwell sued Incarnate Word, the dean of nursing, and three faculty members, alleging breach of contract, violations of the Deceptive Trade Practices Act, intentional infliction of emotional distress, tortious interference with contract, breach of good faith and fair dealing, promissory estoppel, fraud, slander, slander per se, conspiracy, and false imprisonment. Incarnate Word and the individual defendants filed separate motions for summary judgment. Several responses and replies to those responses were also filed.

An associate judge heard the motions and ordered that Incarnate Word's and the individual defendants' motions for summary judgment were in all things granted. Southwell appealed the associate judge's decision. Following a de novo review, the trial court also granted Incarnate Word's and the individual defendants' motions for summary judgment on all of Southwell's claims except promissory estoppel and breach of good faith and fair dealing. The parties then entered into a Rule 11 agreement whereby Southwell agreed to drop her promissory estoppel and breach of good faith and fair dealing claims and to waive her right to appeal all causes of action except her breach of contract and DTPA claims against Incarnate Word. Incarnate Word and the individual defendants agreed to dismiss their counter claims and motions for sanctions.

ARGUMENT AND AUTHORITY

A. Summary Judgment Evidence

In her sixth issue on appeal, Southwell contends that Incarnate Word's objections to her summary judgment proof were not adequately specific. Further, Southwell argues, and Incarnate Word concedes, that Incarnate Word failed to obtain written rulings on its objections to Southwell's summary judgment evidence. However, Incarnate Word contends that, because the trial court sustained identical objections offered by its co-defendants, its objections were impliedly sustained.

First, we note that Incarnate Word's objections to Southwell's summary judgment proof are not identical to the objections made by the individual defendants as Incarnate Word suggests. The individual defendants made very specific objections to specific statements contained in Southwell's affidavits, enabling the trial court to sustain the objections to only certain statements in the affidavits. On the other hand, Incarnate Word's objections were blanket assertions that Southwell's affidavits were conclusory, speculative, and not based on personal knowledge. Accordingly, it would be an overstatement to say that the trial court's rulings as to the individual defendants' objections apply, by implication, to Incarnate Word's objections. Cf. Beutel v. Dallas County Flood Control Dist., 916 S.W.2d 685, 694 (Tex.App.--Waco 1996, writ denied) (stating that, in trials involving multiple defendants, each party must satisfy its own objection to the evidence if it wishes to preserve error for appeal).

Even assuming that Incarnate Word's objections were sufficiently specific, the affidavit must remain part of the summary judgment record as applied to Incarnate Word unless an order sustaining the objection was "reduced to writing, signed, and entered of record." Giese v. NCNB Texas Forney Banking Center, 881 S.W.2d 776, 782 (Tex.App.--Dallas 1994, no writ); Eads v. American Bank, N.A., 843 S.W.2d 208, 211 (Tex.App.--Waco 1992, no writ); Utilities Pipeline Co. v. American Petrofina Mktg., 760 S.W.2d 719, 723 (Tex.App.--Dallas 1988, no writ). Although Incarnate Word objected to Southwell's affidavit, it does not contest that it failed to secure rulings on those objections. Therefore, Southwell's affidavit must remain part of the summary judgment record as it pertains to Incarnate Word. See Peerenboom v. HSP Foods, Inc., 910 S.W.2d 156, 160-61 (Tex.App.--Waco 1995, no writ).

Contrary to Southwell's assertion, the fact that Southwell's affidavit is to be considered as part of the summary judgment record does not require that the summary judgment be summarily reversed. Because there is no evidence that the trial court sustained Incarnate Word's objections to Southwell's affidavit, we simply presume that the trial court considered the affidavit in determining that Incarnate Word was entitled to summary judgment on Southwell's causes of action.

In her seventh issue on appeal, Southwell contends that the trial court erred in overruling her objections to Incarnate Word's summary judgment evidence. The evidence at issue consists of the affidavits of Brenda Jackson, Holly Cassells, Jennifer Cook, Catherine Murk, and Maureen Reilly. All the affiants are faculty members in the nursing program at Incarnate Word, and each relayed her knowledge of Southwell's performance in the clinical and in the independent assessment. In short, Southwell contends that the affidavits are conclusory and contain unsubstantiated opinion and hearsay.

A review of these affidavits reveals that they all constitute competent summary judgment evidence pursuant to TEX.R. CIV. P. 166a (f). They convey each affiant's personal knowledge, as nursing faculty, of Southwell's performance as a nursing student and factual assertions regarding the faculty's actions. Any conclusions or personal opinions contained in the affidavits are based upon knowledge of the facts and are substantiated by each affiant's experience and position. We, therefore, conclude that the trial court did not err in overruling Southwell's objections to the affidavits.

B. Issues to be Considered on Appeal

In her second issue on appeal, Southwell contends that her breach of contract claim should remain before the trial court because neither Incarnate Word's motion for summary judgment nor the trial court's summary judgment order addresses the breach of contract claim. The trial court's summary judgement order states:

Defendant, The University of the Incarnate Word f/k/a Incarnate Word College's Motion for Summary Judgment is in all things GRANTED. Specifically, the Court granted Defendant, Incarnate Word's Motion for Summary Judgment on contract, violation of the Deceptive Trade Practices Act, the request for attorney's fees, the request for exemplary damages, slander, slander per se, false imprisonment, intentional infliction of emotional distress, tortious interference with a contractual relationship and conspiracy. (emphasis added)

Southwell contends that, because the order does not specifically refer to "breach" of contract, the trial court did not grant summary judgment as to her breach of contract claim. Southwell's claim is without merit.

The essential elements in a suit for breach of contract are: (1) the existence of a valid contract; (2) that the plaintiff performed or tendered performance; (3) that the defendant breached the contract; and (4) that the plaintiff was damaged as a result of the breach. Wright v. Christian & Smith, 950 S.W.2d 411, 412 (Tex.App.--Houston [1st Dist.] 1997, no writ); Garner v. Corpus Christi Nat. Bank, 944 S.W.2d 469, 476 (Tex.App.--Corpus Christi 1997, writ denied); St. Paul Ins. Co. v. Rakkar, 838 S.W.2d 622, 629 (Tex.App.--Dallas 1992, writ denied). In its motion for summary judgment,...